India and Pakistan have once again failed to resolve their differences over two hydropower projects being built in India. The Indian government holds that the Kishanganga and Ratle projects are being built within the ambit of the 1960 Indus Waters Treaty (IWT) between the two countries. Pakistan does not agree, and has decided to take the matter to the Hague-based International Court of Arbitration (ICA).

Under the treaty, Pakistan holds the right to the water of the three western rivers in the Indus basin (the Indus, Jhelum and Chenab) and the rights to the eastern rivers belong to India. About 80% of the water that flowed through these six rivers in the 1950s was allocated to Pakistan. However, India has certain non-consumptive use rights over the waters of the western rivers

The latest deadlock came after two days of talks on July 14-15 between the IWT commissioners and officials of the two countries in New Delhi. After the talks, Pakistan’s Water and Power Minister Khawaja Mohammad Asif tweeted that his government would go to the ICA.

A spokesperson of India’s Ministry of External Affairs described Pakistan’s plan as a violation of the IWT, which asks the two countries to resolve their differences through bilateral discussions as far as possible. New Delhi believes more discussions would lead to a solution, and it would be unnecessary to drag the matter to the ICA.

Pakistan’s minister said talks with India on both projects had continued for two and half years at the Permanent Commission of Indus Waters (PCIW), but this could not yield results.

The IWT says that when water disputes fail to get resolved bilaterally, the government that feels aggrieved has the option to go to the ICA; if there is a dispute over the design of any project, the government should go to a neutral expert.

Pakistani newspapers quoted officials as saying the country’s water rights were being violated by India on two rivers, the Chenab and the Jhelum, through a “faulty design” of the 850 MW Ratle and 330 MW Kishanganga hydropower projects, both located before the rivers reach Pakistan.

The dispute

The current dispute is over two issues: first, whether India can draw down the water in the reservoirs below the dead storage level in any event other than an unforeseen emergency; second, whether India’s diversion of water for the run-of-the-river projects was a violation of the IWT. There are four other technical questions on the design of the Indian projects which are still unresolved.

India has consistently maintained that the design will continue to supply Pakistan the 43 million acre feet every day, as it is supposed to do under the treaty, and as it has done right through, even when the two countries were at war.

But the eight-member Pakistani delegation led by Water and Power Secretary Mohammad Younas Dagha was not satisfied with the talks.

There were critics of Pakistan’s decision within the country. Jamiat Ali Shah, former Pakistan commissioner for the IWT, expressed “strong reservations” about the government going to the ICA “at this belated stage” and especially about including the Kishanganga project, which is ready to be commissioned this November.

Past court ruling gave green light

Located on a tributary to the Jhelum, the USD 864 million Kishanganga project is a run-of-the-river hydropower scheme that is designed to divert water from the Kishanganga river (called Neelum in Pakistan), generate electricity, and then send the water back to the river.

Construction began in 2007, but was halted in 2011 because Pakistan went to the ICA and said the Kishanganga project would adversely affect the Neelum Jhelum hydropower project it planned on the same river. The Pakistani government said its project had been on the boards since 1989, long before the Kishanganga project was conceived, though it had been able to raise the money to start work.

In February 2013, the ICA gave an interim ruling that India could divert a minimum amount of water for power generation, and work on the Kishanganga project was resumed. The ICA confirmed its ruling in December 2013.

Going by the IWT, the ICA now has to find seven arbitrators – two each from India and Pakistan and three jointly or by institutions listed in the treaty. Jamiat Ali Shah feels the Kishanganga project will be launched before the seven arbitrators are in place.

Shah told the Pakistani media that in the past, India had used delaying tactics in response to Pakistani objections and used that time to go full throttle with the construction of the projects. He said he had experienced this as IWT commissioner during the dispute over the Baglihar dam, when India would continually urge bilateral talks.

Asked about this, a former official of India’s Ministry of Water Resources said India urged bilateral talks because that was the procedure laid down in the IWT.

Political deadlock

Both sets of officials felt that without political will at the top, transboundary water disputes between India and Pakistan could not be resolved by hydrologists and bureaucrats.

As for the Ratle project on the Chenab, in Doda district of Jammu and Kashmir, Pakistani officials have said that if India goes ahead with the current design, water flow can potentially be reduced by as much as 40%. The dam has been designed to hold 24 million cubic metres of water, while Pakistan wants this to be reduced to 8 million cubic metres.

Asked about this, the former official of India’s water resources ministry said the ability to hold back more water was a precaution necessary to minimise the possibility of flash floods that would affect Pakistan the most. He added that there was no reason to fear “the project operator will go against all the norms of a run-of-the-river project and hold back the water, especially when that will mean it will not be able to generate electricity and make money.”

But the Pakistani government is not convinced and has already hired two US-based law firms – Three Crowns and Williams & Connelly – according to media reports from Islamabad. Both firms are well known in the US for their lobbying prowess.

Danish Mustafa, independent water expert from Pakistan, blamed the “military driven water nationalists for playing politics and posturing to their own disadvantage” for the current deadlock. He held Pakistan’s civilian government responsible as well.